The federal government has tabled Bill C-59, An Act Respecting National Security Matters, its response to concerns about the extensive powers and accountability failures of the 2015 Anti-Terrorism Act, Bill C-51. Bill C-59 has its positives, including necessary accountability measures for security agencies CSIS, CSE and the RCMP. It clarifies CSIS powers; removes concerns around definitions of the crime of terrorism; introduces some safeguards for the No Fly List; and tries in part to address concerns about information collection and sharing.

The government also introduces a Charter impact paper that is welcome. All these are being debated and will be further analyzed in days to come. But what about omissions in Bill C-59?

Bill C-59 does not provide adequate due process, by failing to mandate the use of Special Advocates in critical areas of the Bill, for example CSIS disruption warrants, and the No Fly list litigation, to name but a few.

Bill C-59 is further silent on one critical Bill C-51 provision that denies due process and fundamental justice – core rights and principles enshrined in the Canadian Charter of Rights and Freedoms.

The earlier Bill C-51 amended the Immigration and Refugee Protection Act (IRPA) as it related to Security Certificates. These amendments were regressive because they reversed important mechanisms introduced by Parliament, after the 2007 Supreme Court of Canada decision in Charkaoui v Canada.

Before Charkaoui, an individual could wake up one day and discover he or she was now a “Named Individual” under a Security Certificate, and could be arrested and detained, subject to house arrest and bail conditions, all pursuant to a pending deportation order. After 9/11, all the Named Individuals were Arab men who were permanent residents or refugees in Canada. The Named Individual did not know the case against him, other than that he was deemed a security threat and therefore “inadmissible” and subject to deportation. The “case” against him was “secret” and the very process of analysis and “conviction” was also done in secret. Two ministers – Citizenship and Immigration, and Public Safety – would decide, upon the “evidence” presented to them, whether the person should be “Named,” that is, subjected to a Security Certificate.

That Security Certificate procedure offended the principles of fundamental justice using secret trials and evidence, with denials of fair hearing, due process and the right of a person to know the case against him and make full answer and defence. Any possibility of innocence seemed absent while indefinite detention was at play. The very officials tasked with upholding constitutional rights were active participants in a schema of rights failures. The accuser and inquisitor collaborated, while the accused was disadvantaged in failures of process.

Fortunately, that iteration of the Security Certificate process went to the Supreme Court of Canada in the Charkaoui case. The court decided that even though national security demands secrecy, national security imperatives could not be used to deny the principles of fundamental justice guaranteed in section 7 of the Charter. The court also noted that the psychological stress of indefinite detention risked cruel and unusual punishment in violation of section 12 of the Charter.

Consequently, Parliament introduced the “Special Advocate” to participate in Security Certificate cases. Special Advocates are expert lawyers with top-level security clearances, able to view the “secret evidence” against the Named Individual, and to argue on behalf of the Named Individual challenging the “evidence,” and even challenging government assertion that certain evidence is subject to national security confidentiality.

Special Advocates rid Hassan Almrei of the Security Certificate against him. Special Advocates reviewed the “evidence” – evidence that on its face resulted in the ministers ordering the arrest, detention, and deportation of Mr. Almrei – and successfully demonstrated that the evidence was flimsy and misrepresented, and that exculpatory evidence had not been disclosed. Hassan Almrei was freed, but after eight years of ordeal.

It is worth noting that if Bill C-51 had been in force at the time, Hassan Almrei’s Security Certificate would likely not have been quashed. It was only quashed because Bill C-51 was not in force and as a result, the Special Advocate was able to see and rely upon the exculpatory evidence that the minister did not deem relevant.

Yet in 2015, Bill C-51 disempowered the Special Advocate. Bill C-51 introduced provisions, now law, permitting the Public Safety minister to withhold relevant evidence from the Special Advocate. This amendment imperils the Named Individual: If relevant evidence is not available to the Special Advocate, there is the possibility that a person who should be exonerated will not be. This is a grave injustice and one the Charter specifically seeks to guard against. Arguments of national security privilege should not be an issue given that the Special Advocate has top security clearance precisely to be trusted with national security secrets.

Fundamental justice and due process define us a society. Without them, we are willing to participate in and endure the injustice of innocents. And, we waste resources pursuing innocents, while being diverted from those who are actually guilty and in turn, free to perpetrate more harm.

The government must amend the Security Certificate provisions of Bill C-51 so that relevant information and all evidence is disclosed to the Special Advocate. The Special Advocate regime has worked very well in immigration proceedings. The government ought to mandate the use of Special Advocates as they are often the only real-time check on intelligence agency overreach.

Sukanya Pillay is a 2017 Maytree Scholar Fellow in Global Journalism at the Munk School of Global Affairs, and the Executive Director and General Counsel of the Canadian Civil Liberties Association (on leave).

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